United States Fish and Wildlife Serv. v. Sierra Club, Inc.
Headline: Court allows agencies to withhold internal draft wildlife opinions under FOIA, ruling that preliminary draft biological assessments can stay secret and limiting early public access to agency scientific views.
Holding:
- Makes it harder for public groups to obtain agencies’ internal draft scientific analyses.
- Allows agencies to keep preliminary internal deliberations secret during rulemaking.
- Affirms that final biological opinions remain subject to disclosure, but remand may release nonexempt parts.
Summary
Background
The dispute involved the Environmental Protection Agency, the Fish and Wildlife Service and the National Marine Fisheries Service (the Services), and the Sierra Club, an environmental group. EPA proposed a 2011 rule about cooling water intake structures that can trap and kill fish and other aquatic life. The Services prepare "biological opinions" under the Endangered Species Act to say whether agency actions would jeopardize protected species. In 2013 staff at the Services completed draft biological opinions finding the 2013 version of EPA’s rule likely to cause jeopardy, but decisionmakers did not approve or send those drafts to EPA. The Services and EPA continued consulting, EPA revised its rule in 2014, and the Services issued a joint final "no jeopardy" opinion. Sierra Club sought the withheld draft opinions under FOIA; the Services invoked the deliberative process privilege and withheld them, and the Ninth Circuit ordered disclosure.
Reasoning
The Court asked whether the deliberative process privilege covers in-house draft biological opinions that later proved to be the agencies’ last views. The Court held the privilege applies to documents that are both predecisional and deliberative. The Court emphasized the functional question of whether the agency treated a document as final. Because decisionmakers never approved or circulated the 2013 drafts to EPA, the Court characterized them as drafts of drafts and protected them, rejecting an effects-based test that would treat any document that influenced EPA as final.
Real world impact
The ruling makes it harder for the public, journalists, and advocacy groups to obtain agencies’ internal early analysis of proposed rules. Agencies retain stronger protection for internal deliberations, though final biological opinions and other definitive agency decisions remain disclosable. The Court remanded for the lower courts to decide separable, nonexempt material to release.
Dissents or concurrances
Justice Breyer (joined by Justice Sotomayor) dissented, arguing many draft biological opinions function as final communications and should normally be disclosed; he would have made the factual classification on remand.
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